San Francisco Bridge Co. v. Charles Nelson Co.

WARD, J., pro tem. This is an appeal from a judgment in the sum of $12,500 awarded by a jury in an action to recover damages for the loss at sea of plaintiff’s floating derrick barge and property stowed thereon, which was under tow of one of defendant company’s steamships from the port of Los Angeles to the port of San Francisco. The appeal is based upon errors of law in the rulings and instructions of the court. For the sake of brevity the steamship will be referred to as the “Griffdu” and the barge as “Number 31” or as “the barge”.

The only alleged error relative to the admission of evidence was the trial court’s refusal to permit defendants to introduce a certain letter directed to the plaintiff, written upon the stationery of the Charles Nelson Company, one of the defendants, signed by J. Michaelsen, connected therewith, and accepted on behalf of plaintiff by Fred R. Muhs. The body of the document reads as follows:

“We hereby cohfirm arrangement to furnish motor power to tow your Barge No. 31 from San Pedro to San Francisco Harbor, delivered to our steamer by tug for your account. We are to drop the barge at San Francisco Harbor to be picked up by tug here for your account.

“We understand your barge will be ready for the venture on June 17th, 1929, subject to your judgment of weather conditions indicating the probability of a safe tow. ’ ’

(The following paragraph is pasted on over the original paragraph of the letter: “In case of foundering or burning at sea the amount to be paid shall be an amount proportional [689]to the tow which had been completed; that is, the towage fee would be pro-rated as to the time in transit; in ease of loss as above.”)

“The tow service is to be entirely at the risk of the tow and the Steamer ‘Griffdu’ and her owners take no risk or responsibility whatsoever for the safe towage of the said tow, and agree solely and only to furnish the motor power.

“The charge for this service is to be $500.00.”

The original arrangements for the towage of the barge were made verbally by the president of the defendant company and the vice-president of the plaintiff company. The instrument in writing was simply a confirmation of such arrangements. That the barge was to be towed from San Pedro to San Francisco, that delivery was to be made to and received from the “Griffdu” by the plaintiff, that the barge should be ready for tow on a certain date, and that a pro rata hire was to be paid in case of foundering or burning at sea, which seems to have been subsequently paid, were all facts admitted in the pleadings or presented as stipulated evidence in the trial of the case. The provision relative to “weather conditions indicating the probability of a safe tow” subject to the judgment of plaintiff was immaterial in so far as the admissibility of the letter was concerned, for the reason that the evidence showed that the weather was calm when the “Griffdu” “picked up the barge” and commenced the tow. This leaves the written instrument with only the following pertinent provision: 11 The tow service is to be entirely at the risk of the tow and the Steamer ‘Griffdu’ and her owners take no risk or responsibility whatsoever for the safe towage of the said tow, and agree solely and only to furnish the motor power.” The motor power was a necessary adjunct to towing the barge, but when defendants sought to so limit their responsibility that they would not be liable for their own negligence, they incorporated a provision in the instrument whicli was opposed to public policy and therefore illegal and void. In The Somers N. Smith, 120 Fed. 569, a contract provided: “ . . . the owners of the tug were to furnish simply the motive power to propel the tow, and to be in no way responsible for her navigation”; and the court held (page 576): “In the opinion of the court, even if the contract claimed by the owners of the tug had been established, it would not relieve the tug nor her owners from the negligence of the tug or her